Enforcing constitutional law is difficult. The constitution, after all, is a mere piece of paper and the government it seeks to constrain is infinitely more powerful than the citizens it seeks to protect. Against this backdrop, many have nonetheless observed that the task of enforcing a constitution against a government predisposed to ignore it is not entirely hopeless when ordinary citizens oppose constitutional violations and are willing to make their voice heard. That is, when citizens protest, litigate, engage in civil disobedience, or move against a government set on violating the constitution in some other way, then constitutional violations become politically costly for a government, which might deter it from pursuing unconstitutional actions.
This logic, however, assumes that citizens indeed care about upholding the Constitution, and that they are willing to set aside their partisan preferences when needed. But do citizens indeed want governments to refrain from violating the Constitution? And are they willing to do so even when this means giving up their preferred policies?
Thus far, we have limited insight into these questions, though some recent research suggests that only few voters are willing to punish politicians that pursue undemocratic reforms when doing so clashes with their partisan preferences. In our recent book, "How Constitutional Rights Matter," my co-author Adam Chilton and I present results from a survey experiment in Turkey, that uses the government’s ban on the website Wikipedia as an opportunity to probe these questions.
On April 29, 2017, the Turkish government blocked access to the website Wikipedia, allegedly because Wikipedia portrayed Turkey as a sponsor of ISIS and Al-Qaeda. Although Wikipedia appealed the ban as a violation of free speech with both the Constitutional Court and the European Court of Human Rights, the site went dark immediately and has remained so for over two-and-a-half years. In December of 2019, the Turkish Constitutional Court finally ruled that the ban was unconstitutional, apparently because it wanted to preempt a negative ruling from the European Court of Human Rights. In early 2020, Turkish internet users finally regained access to Wikipedia. While this may seem like a victory for the Turkish Constitution’s protection of free speech, it is notable that the government was able to maintain a blatant constitutional violation for over two years.
Turkey is not the only country that has been able to circumvent its constitution’s free speech protections. The research presented in "How Constitutional Rights Matter" finds that it is often remarkably easy for governments to violate free speech rights. For instance, by 2010, 186 countries protected free speech in their constitution. But, according to the widely used data on rights violations, only 41 countries did not place any restrictions on that right in practice. In my prior research on the topic, I have found no evidence that countries that add the right to speech to their constitution are any more likely to stop curtailing free speech than those without constitutional free speech protections.
In September 2017, a series of 1,335 face-to-face interviews were conducted in Turkey with a representative sample of their population. Surveyors first asked respondents whether they supported the ban. They then randomly told some citizens that the ban was a clear violation of the constitution, which allows us to explore whether reminding citizens of the violation changes their level of support for the ban. At that time, the Constitutional Court had not yet ruled on the ban, so there was still uncertainty over the ban’s constitutionality.
The findings from this survey experiment do not bode well for constitutional rights protection. Notably, 93 percent of respondents said that the government should not violate the Constitution when asked the question generally. Yet, notwithstanding the high levels of support for the Constitution in the abstract, being told that the Wikipedia ban violated the Constitution did not decrease support for banning Wikipedia. Some 39 percent of respondents in the control group supported the ban, and this number actually increased to 47 percent for respondents that were told that the ban violated the constitution (although this difference is not statistically significant). Knowledge that the ban violated the constitution, then, did little to turn citizens against their government.
It is illuminating to further break down the results for the respondents that voted for President Erdogan’s AKP party. Among these respondents, the level of support for the ban was higher than for the population as a whole: some 66 supported the ban. Being told that the ban represents a constitutional violation did not cause these voters to change their support: it made them more likely to support it. Of the AKP supporters that were told the ban violations the constitution, 88 percent of respondents supported the ban. Thus, instead of becoming less supportive of their party’s policies, they actually became more supportive of it. Presumably, these AKP supporters took their government’s willingness to violate the Constitution as a signal that the underlying goal must be particularly important, which made them more supportive of the ban.
These findings provide insight into that why it is that enforcing the constitution is difficult. The case of the Turkish Wikipedia ban reveals that support for the constitution in general often turns out to meaningless in concrete cases. When presented with actual violations by their party, citizens support their party’s policies, not the constitution. In doing so, they essentially are giving the government carte blanche to pursue constitutional violations.
The Turkish case reveals an important lesson for other countries where constitutional safeguards are threatened: preventing constitutional violations requires people to put the constitution ahead their partisan preferences. When people put their party over the constitution, the document is at risk of becoming a dead letter.
A different version of this post earlier appeared as Adam Chilton & Mila Versteeg, Turkey’s Wikipedia Ban and Popular Support for Violating Constitutional Rights, Summary Judgement (August 25, 2020).